The legal analysis is not particularly difficult. The city’s ban on overnight camping in public parks is a content-neutral time-place-manner restriction that leaves open ample alternative means of communication.

The protesters obviously seek to occupy the moral high ground vis-a-vis Wall Street and plutocrats and the like, but they also appear to wish to occupy the moral high ground with respect to the law governing use of the city parks. That seems like a more difficult task.

According to the Times-Dispatch story linked above, “[occupier] Kadrich said that the occupiers were ‘following all legislation that we term to be wholly just.’ He added that if given an ultimatum to leave the plaza by a certain date, many protesters may exercise ‘civil disobedience.'” Yet the protesters already are engaged in civil disobedience. Regardless of whether the city forces the issue, they are in violation of a valid law.

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The legal analysis may not be particularly difficult, but I may argue (may, b/c I am thinking as I type….it’s late, but wanted to try and respond) that your conclusion is overly simplified. Are the occupiers breaking the law? If I drive my car five miles over the speed limit and an officer sees me and clocks my speed, but chooses not to pull me over, did I break the law? If I jaywalk or smoke in a public park or loiter or litter or or or….and am seen by an officer but not arrested, have I just committed civil disobedience? Is it not true that police have discretion (in light of resources, priorities, etc.) to make arrests or not, and if they do not, then one cannot be labeled a “disobedient,” or even if they do, a court may still decide, for a variety of reasons not to charge (or may try and lose), in which case, is the arrestee still somehow legally culpable? (there may be arguments to be made about moral culpability, but using the term “civil disobedience” implicates legal culpability).

The statements that “the occupiers are breaking the law and Richmond has the legitimate authority to enforce the law by removing the occupiers” and “the protesters already are engaged in civil disobedience. Regardless of whether the city forces the issue, they are in violation of a valid law,” seem to be overstating, or even misstating the situation.

They are not currently engaged in civil disobedience. They may or may not be planning to engage in civil disobedience. And they may or may not be planning to engage in civil resistance (longer discussion).

Should the “protesters” be offered another time or place to engage in first amendment activities? Should they be warned that they may be in violation of a statute? Or should they simply be arrested, because it goes without saying that if there is a statute and anyone anywhere violates it, they deserve both arrest and prosecution (or in the case of Occupy Oakland, tear gas and rubber bullets…only to be let back in to ‘occupy’ the same space 24hrs later).

Courts seem to understand “civil disobedience” in fairly narrow terms, one of the results of which is an assumption of guilt. We may be on the verge of a public re-thinking of common space and public space. Or we may not be. But I would argue that we should not be too quick to label as “civilly disobedient” that which the court has not had a chance to.

Matt-
Thanks for the questions, which are challenging as always. You have certainly given these matters more extensive thought than I have, and I appreciate your perspective. Let me see if I can unpack my approach a little bit more.
A lawyer for the city or a lawyer for the occupiers asked for legal advice should not have any difficulty in advising either the city or the occupiers (1) that the overnight occupiers are presently breaking the law, and (2) that there is no First Amendment problem with enforcing the prohibition against overnight camping in public parks. These conclusions hold true regardless of whether they are ever tested in court. And the conclusion that they were breaking the law would be true if they are able to come into compliance with the law in some way going forward and their past non-compliance is not prosecuted.
Should we reserve the label of “civil disobedience” only for those of the occupiers “who say that, ‘No matter what, I’m staying, and the only way I’m leaving is in the back of a police car,’ ” and even then only for the moment in time when they are passively or actively resisting being put in the back of a police car? I resist doing so because the law is not just force and will, but rules and reason as well.
As I understand the facts in Richmond (and I should add that I am completely reliant on the news accounts, which may be incomplete or inaccurate (as may be my interpretation of them)), the mayor has informed the group that they are in violation of the prohibition of overnight camping in a public park, the group has not secured a permit that would authorize their actions, and the mayor has said that so far he has been lenient but that he will need to enforce the law at some point. Given these facts, the continued “occupation” involves organized, intentional disregard of a known and legitimate prohibition on overnight camping, by a group, as a means to an end. In my view, that constitutes ongoing civil disobedience.
It could be that I am pushing the time for affixing the label of “civil disobedience” forward too much. If the occupiers have some reason to believe that they are not in ongoing violation of legitimate law, however, I am unaware of what that reason is. And, as should be clear by now, I reject the view that civil disobedience does not take place unless and until one resists active enforcement by the police.

Appreciate your response, and the opportunity to engage these issues. Reading your analysis is always instructive (even, or particularly when I disagree), and discussion (even over the internet) is helpful in adjusting and/or refining my own thinking.

I agree that “a lawyer…..asked for legal advice should not have any difficulty in advising either the city or the occupiers” as you describe, though I am still unsure whether, lacking an arrest, prosecution and conviction, it is precise to say that the law is broken.

In a strictly legal sense, we reserve the term “convict,” or the terms “murderer, rapist,” etc… for those who have been convicted, not simply accused (or in the case of ‘occupiers,’ advised).

In addition to the law being not just force and will, but rules and reason, the law is also language. And language is important.

Theoretical violations of actual statutes by actual people are not the same as actual violations, but labeling both in the same manner (civil disobedience) I find troubling.

Courts, incorrectly i would argue, but consistently assume guilt when dealing with civil disobedience (both direct and indirect), even all but ensuring guilt through per se rules excluding defenses (see US v Schoon 971 F. 2d 193).

This is why I think it especially important that we reserve the label of “civil disobedience” only for those arrested, tried, charged and convicted.

I would not agree with the assertion that ‘occupations’ in Richmond (where I only know a few of the folks participating) and in other cities (where I have varying involvement and interaction) are a “means to an end” that can be accurately characterized by “organized, intentional disregard of a known and legitimate prohibition on overnight camping.” Whether the occupiers believe or have reason to believe that they are not in ongoing violation of legitimate law is one factor of many to be examined in this determination. (and as you may surmise, it is difficult, but not impossible to examine factors among a decentralized, more or less leaderless consensus based group).

I would respectfully submit that because of all of the above, and underlining the importance of language, affixing the the label of “civil disobedience” in not accurate, and possibly misleading.

Seeing as the identities of several of the occupiers and the fact of their overnight camping is known, perhaps the simplest approach going forward would be to obtain arrest warrants for some or all of those whose identities is known. Probable cause would be easy enough to establish from social media and direct observation. Then the police could enforce the warrants one by one. Assuming that the occupiers remain nonviolent, the arrests of one or a small group would not present a problem of public safety. (Whether the assumption of continued nonviolence in the face of arrest is a reasonable assumption depends on a lot of factors that I have no knowledge about, but from a distance I have no reason to expect violence.) An arrest and prosecution of one or a small group would give the occupiers a chance to air their defenses. Any reason not to initiate some bellwether prosecutions?

well, I was going to respond that there were many reasons not to initiate some bellwether prosecutions, but alas, seems as if your suggestion was followed early this am:

“Nine people were taken into custody this morning when Richmond and Virginia State Police broke up an encampment of Occupy Richmond protesters who had been living at Kanawha Plaza downtown since Oct. 15.

The operation occurred about 1 a.m. when officers went to the public park near Ninth and Canal streets and gave the protesters a chance to leave. Many did; those who did not were taken into custody.

Richmond police spokesman Gene Lepley said nine people were detained on charges of trespassing and/or obstruction of justice. Four were given summonses; the other five were taken into custody, Lepley said.

Police did not use force and there were no injuries…After the park was cleared, Richmond Department of Public Works crews came in with bulldozers and began clearing the debris left behind and stringing yellow police tape around a perimeter marked by traffic barrels.”

If you would like some pro bono hours, I can see if they are looking for representation🙂.

All kidding aside, it seems like folks were given fair warning, many chose to leave, and those who remained were arrested. There was civil disobedience after all.

Not sure why the police saw the need to do this at 1am….and after 16 days of allowing it, but I suppose that can be discovered at trial. I am also unsure why evidence and personal property was destroyed instead or preserved.

It has been interesting to follow how police departments, courts and lawyers have dealt with occupations around the country (albany police refuse to arrest in face of mayor’s and governer’s request, nashville judge refuses to sign arrest warrants and dismisses charges against those arrested, oakland police use disproportionate – and possibly illegal – force to clear park, only to let occupiers back the next day, nypd illegal use of pepper spray, etc…)

It will also be interesting to follow how lawyers and activists respond (and the rest of the public as well). The conversation around the country has been changed. Will the rhetoric lead to a change in more than simply conversation? Will our politics change? Our laws?